Bad Cases, Bad Case Law

By Dan Cadman, March 10, 2014

It's an oft-repeated maxim in law enforcement and prosecutorial circles that "bad cases make bad case law." It's a cautionary reminder that what happens in the field, and how it happens, directly affects for better or worse what happens later in court, including at the appellate level.

The federal Third Circuit Court of Appeals has just decided an immigration-related case that proves the strength and truth of the maxim, as if anyone in favor of vigorous but rational immigration enforcement needed a reminder.

The case, Galarza v. Szalczyk, et al, involved one Ernesto Galarza, a United States citizen who was arrested on drug charges by local police and had a detainer filed against him by ICE. Though the detainer was later withdrawn, it was not until after he otherwise would have been released by Lehigh County, Pa., jail authorities, resulting in his detention by the county for three days on the basis of the detainer.

In the resulting lawsuit, filed on Galarza's behalf by the Pennsylvania chapter of the American Civil Liberties Union (ACLU) and affiliates, he alleged that his detention was solely the result of discrimination and had cost him loss of his part-time job and wages.

There are many troubling aspects to the case, not least of which is the fact that ICE agents filed the detainer, apparently without enough advance screening to find out that Galarza had been born in New Jersey. For this, they were sued in their individual capacities, although surprisingly the federal government represented them (and ultimately settled in their behalf as well as its own).

As defendants settled and stepped out of the case, ultimately only Lehigh County was left on the hot seat to contest the matter, arguing that honoring the detainer constituted no more than what was required by federal regulation, which uses the phrase, "shall" in describing police and corrections responsibilities for holding detained individuals. The court, in a twist of logic, decided that the plain meaning of "shall" is "may".

Another troubling aspect of the case is that, with Lehigh County left to defend itself, the federal government proferred absolutely no guidance or assistance in their own interpretation of whether or not state and local authorities are required to honor detainers. One would think the presiding court would have issued an order requiring the federal government to offer up its views, despite having settled and been dismissed from the case.

The dearth of federal viewpoints was made clear in the dissenting opinion of Circuit Judge Barry. Even though they were not properly defendants, this would have been easy to do: that is why courts permit amicus curiae (friend of the court briefs). One would think that both ICE and the Justice Department (which represents ICE in court in such situations) would have deemed it in their interest to do so, putting aside the moral imperative of aiding the county that has stood by them when so many other agencies these days have taken a contrary course.

It is also troubling that ICE itself has roiled the muddy waters with its own changes. Even while it has left the regulatory language untouched, it has amended the verbiage on the detainer document itself to the point where it does look very much like a wishy-washy, hat-in-hand, kind of form. This, compounded with policy changes issued under former ICE Director John Morton, leaves one wondering what the agency's own views are. But then this is the Obama administration, whose interest is in eviscerating immigration law enforcement, not in seeing it preserved, so perhaps we are better off not asking them to be specific and overt. One suspects that even ICE agents are unclear that a detainer is mandatory and therefore to be used with caution and only after having established alienage against the subject because the consequences that attach to filing one redound to the government generally, and to them personally.

Finally, there is the convoluted reasoning of the Third Circuit itself, eloquently noted by Judge Barry in his dissent. It's a through-the-looking-glass kind of logic, and not only because the plain meaning of "shall" is, apparently, not so plain at all. The majority opinion asserts that because immigration is a federal responsibility, state and local governments cannot be obliged to honor immigration detainers. That makes no sense at all. It is well to remember that when the Supreme Court issued its seminal decision so many years ago, articulating the federal supremacy of immigration laws, it was to deter states from attempting to nullify or change those laws by legislating their own, different standards. The Supreme Court was wise enough to know that this would ultimately unravel the union, because each state might then levy its own citizenship requirements and border control standards, each against the other as well as against foreign powers. But the same effect holds true if states are also permitted to obstruct federal immigration statutes by foiling the efforts of ICE agents to enforce the law. This cannot be what the Supreme Court intended.

In a press release quoted by the media, a staff attorney for the Pennsylvania ACLU said "Locking up Ernesto Galarza for three days hurt him and his family and did nothing to make Lehigh County safer. We hope Lehigh County takes a hard look at doing favors for ICE."

Interesting. Keeping in mind that Galarza's original arrest by police was for narcotic offenses, if the first part of that statement is to be believed, then Galarza must have worked for an employer who doesn't keep a drug-free workplace — unlikely in this day and age.

Nonetheless, the second part of the statement, about Lehigh County having to think hard about future cooperation with ICE, is undoubtedly true. And that, of course, is what ACLU wanted all along. Galarza was no more than a means to an end.

Let us take a measure of solace in the fact that the Third Circuit's decision is binding only in the Third Circuit, and hope that as other courts review such matters (as surely they will), they will apply a more sophisticated form of reasoning. And, since we are on the cusp of spring, and spring is the season of hope, let us hope even more fervently that by the time the issue of detainers again comes to the attention of a circuit court, a different administration — one more amenable to fair and balanced immigration enforcement — is in office, ready, willing, and able to aid the courts with a well-argued brief on why state and local governments cannot be permitted to frustrate federal immigration laws.